State v. Robinson, 47401
| Decision Date | 02 October 1984 |
| Docket Number | No. 47401,47401 |
| Citation | 680 S.W.2d 292 |
| Court | Missouri Court of Appeals |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Eugene L. ROBINSON, Defendant-Appellant. |
Debra Buie Arnold, Asst. Public Defender, St. Louis, for defendant-appellant.
John Ashcroft, Atty. Gen., Deborah Neff, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
The state charged and jury found prior felon defendant Eugene Robinson guilty of two offenses: Concealing a firearm (Count I), a felony under Section 571.070 RSMo., and possessing marijuana (Count II), a misdemeanor under Section 195.020 RSMo. The trial court sentenced defendant to ten years in prison on the weapon charge and a $100 fine on the narcotic charge. We treat the points separately.
The evidence: Pursuant to an anonymous tip officers stopped defendant's car, arrested and searched him. They found a .25 caliber pistol in defendant's "groin area, right at the back part of his groin area, right at the back part of his stomach up against the rear of his belt, inside his pants." The gun was cocked and loaded. The police could not see the gun's outline in his jeans.
Defendant's companion was his only witness. He testified to the arrest and search but denied seeing any gun.
At trial defendant did not object to the officer's statement he'd found defendant was carrying a concealed weapon. He now contends the trial court erred in omitting from the verdict director a clause defining a concealed weapon. Instruction MAI-CR 31.28 required the jury to find defendant possessed a concealable firearm. The gist of defendant's plain error contention is that the instruction omitted the prescribed definition:
"As used in this instruction 'concealable firearm' means any firearm with a barrel less than 16 inches in length, measured from the face of the bolt or standing breech."
There was no evidence of the concealed weapon's length. That it was concealed in rear of defendant's stomach, invisible to the police, would seem to show the weapon did have a barrel less than sixteen inches long. The defendant correctly argues the instruction erred in omitting the definition. But defendant not having preserved this point at trial, we limit the issue to considering whether omitting the definition from the verdict was plain error. We conclude it was not.
In State v. Johnson, 537 S.W.2d 816[11, 12] (Mo.App.1976) we held there is plain error only when the failure to instruct caused manifest injustice.
In State v. Cass, 614 S.W.2d 784[1, 2] (Mo.App.1981) we held that although instructional omission is error the burden is on defendant to show it was plain error. We explained:
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State v. Rogers, 50615
...Harp, 680 S.W.2d 297 (Mo.App.1984), affirmed a conviction under § 571.030, RSMo 1986, the concealed weapons statute. In State v. Robinson, 680 S.W.2d 292 (Mo.App.1984), appellant was convicted and his conviction upheld on appeal for an offense under § 571.070, but no issue of enhancement wa......
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State v. Jones, 52207
...State v. Arnold, 676 S.W.2d 61, 63 (Mo.App.1984). The appellant bears the burden of showing manifest injustice. See, State v. Robinson, 680 S.W.2d 292, 293-294 (Mo.App.1984). For several reasons we reject this claim of error. First, the record does not support defendant's claim that the pho......
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State v. Hill, 52039
...as to a victim's extrajudicial statements has also been found admissible to show the course of an investigation, see State v. Robinson, 680 S.W.2d 292, 294 (Mo.App.1984), and State v. Ball, 622 S.W.2d 285, 290 (Mo.App.1981); or because the testimony is merely cumulative, see State v. Morris......